IN  EQUITY. 


Executors  of  WILLIAM  A.  ALSTON, 


>to 


BILL 

vs.  y  to  have  Trusts  of  Will 

declared. 


WILLIAM  A.   ALSTON,  and  Others. 


Filed  91//i  December,  I860. 


PETIGRU  &  KING, 

Complainant's  Solicitors. 


CHARLESTON : 

PRINTED  Vr  A.  J.  BURKE,  LAW  PRINTER  AND  STATIONER, 

No.  40  BROAD-  STREET. 

1860. 


IN    EQUITY 


THE  STATE  OF  SOUTH-CAROLINA, ) 

Charleston  District.  j 

To  the  Honorable  tlie  Chancellors  of  the  said  State : 

Humbly  complaining,  your  Orators,  Alexander  Robertson, 
John  Freer  Blaeklock,  and  William  Alston  Pringle,  Executors 
of  the  last  Will  and  Testament  of  William  Algernon  Alston 
of  All  Saints,  Esq.,  deceased  ;  Show  to  your  Honors :  That  Jo- 
seph Alston,  late  Governor  of  South-Carolina,  devised  all  his 
Estate,  after  payment  of  debts  and  legacies,  to  his  brothers, 
John  Ashe  Alston  and  William  Algernon  Alston;  and  made 
them  Executors;  and  they  proved  his  Will  and  paid  all  his 
debts  and  legacies  ;  and  on  the  10th  day  of  October,  1816, 
entered  into  a  family  settlement  of  the  Estate  which  they 
held  under  their  said  brother's  Will,  for  the  purpose  of  com- 
plying with  the  intention  which  he  had  communicated  to  them 
in  his  life-time,  and  confided  to  their  integrity.  By  this 
settlement,  which  took  the  form  of  a  mutual  Will.  William 
Algernon  Alston,  the  above  named  testator,  devised  to  the 
use  of  his  son  Joseph  Alston,  during  his  life,  a  plantation 
called  the  "Point,"  and  certain  lands  in  Greenville,  with  re- 
mainder to  his  eldest  son  living  at  his  death  that  should  attain 
the  age  of  twenty-one  years,  in  fee.  But  if  the  eldest  son 
should  die  in  his  father's  life  leaving  issue  male,  then  to  the 
use  of  the  eldest  son  of  such  eldest  son  at  the  age  of  twenty- 
one  years  in  fee.  And  in  case  of  the  death  of  the  eldest  son 
of  Joseph  in  his  father's  life-time,  leaving  no  son  alive,  or  no 


2 

snn  that  should  survive  Joseph  and  attain  the  age  of  twenty  - 
one  years:  then  to  the  use  of  the  second,  and  every  other  son 
of'tlio  said  William  A.  Alston,  in  succession  for  life,  with  the 
same  remainders  and  limitations  over  as  are  declared  of  the 
Estate  oi  the  firsl  son  ;  and  in  case  of  the  failure  of  Boch  son, 
randson,  of  the  said  William  A.  Alston,  then  to  the  daugh- 
ters in  succession  for  life,  with  similar  remainders  and  limita- 
tions bo  their  issue,  and  in  case  of  the  failure  of  issue  of  his 
daughters,  to  his  brother  John  Ashe  Alston,  in  let".  And  to 
the  same  uses  he  gave  all  the  oegroesand  all  sorts  of  personal 
estate,  belonging  to  the  "Point"  plantation,  and  subjected  the 
real  estate  to  the  condition,  that  if.  by  the  arrangement  of 
John  Ashe  Alston's  part  of  said  Will,  the  real  estate  therein 
mentioned  should  happen  to  pass  to  him  or  his  family,  then 
the  real  estate  settled  by  him  in  his  part  of  the  Will  should 
shift  to  the  subsequent  uses  in  the  Will  of  John  Ashe  Alston. 
That  by  the  same  instrument,  John  Ashe  Alston  devised  a 
plantation  called  the  "Oaks,"  and  all  the  other  property  which 
came  to  him  by  the  Will  of  his  brother,  the  Governor,  to  his 
son  Thomas  Alston  during  his  life,  with  remainder  to  the 
eldest  son  or  grand-son  of  the  said  Thomas  Alston  that  should 
attain  the  age  of  twenty-one  years,  with  limitations  and  re- 
mainders, which  are  followed  by  those  already  mentioned  in 
William  A.  Alston's  corresponding  Will,  as  their  type  or 
model,  except  that  in  John  Ashe  Alston's  part,  the  Real 
Estate  passes  to  the  male  line  of  his  brother  in  preference  to 
his  own  daughters  or  their  descendants. 

Your  Orators  further  show  to  your  Honors,  that  John  Ashe 
Alston  died  on  the  27th  day  of  December,  in  the  year  1831, 
leaving  his  son  Thomas  Alston  surviving  him,  who  married 
Josephine,  the  daughter  of  said  William  A.  Alston,  and  en- 
tered and  was  possessed  of  the  "Oaks,"  and  other  estate,  so 
devised  as  aforesaid,  during  his  life,  and  died  about  the  17th 
day  of  July,  in  the  year  1835,  leaving  a  son,  Joseph  Al- 
ston, Jr.,  an  infant  of  tender  years,  and  no  other  issue. 
That  the  said  Joseph  Alston,  Jr..  attained  the  age  of 
twenty-one  years  on  the  12th  day  of  June,  in  the  year 
1855,  whereby  the  Estates  settled  by  John  Ashe  Alston  by 


the  .said  instrument  of  the  10th  day  of  October,  1816,  vested 
in  fee  simple  in  the  said  Joseph  Alston,  Jr.,  and  all  the  sub- 
sequent limitations  were  defeated.  That  afterwards,  on  the 
18th  day  of  May,  1854,  the  said  William  A.  Alston,  and  his 
son  Joseph  Alston,  came  to  an  agreement  concerning  the  pro- 
perty of  Governor  Alston  and  the  settlement  of  1816;  and 
in  consideration  of  the  delivery  of  165  negroes,  being  the 
original  stock,  and  the  increase  of  the  negroes  derived 
by  W.  A.  Alston  from  Governor  Alston,  and  a  convey- 
ance of  five  plantations  of  great  value,  the  said  Joseph 
Alston  covenanted,  among  other  things,  that  the  said  William 
A.  Alston  should  have  full  power  to  dispose  of  the  Greenville 
lands,  and  the  "Point"  plantation,  and  that  he  would  save 
him  harmless  against  all  claims  upon  the  same  on  the  part  of 
him  or  his  descendants.  And  afterwards,  on  the  16th  day  of 
July,  in  the  year  1856,  William  Algernon  Alston,  Jun.,  son  of 
the  said  Joseph,  confirmed  the  said  agreement,  and  released 
all  his  interest  in  the  Greenville  lands  and  the  "Point"  planta- 
tion, to  the  said  William  A.  Alston.  That  the  said  William 
A.  Alston  afterwards  made  his  last  Will  and  Testament,  in 
the  following  words  : 

STATE  OP  SOUTH-CAROLINA: 

I,  William  Algernon  Alston,  Sen.,  of  the  Parish  of  AH 
Saints,  in  the  said  State,  do  affirm  this  to  be  my  last  Will  and 
Testament,  as  »et  forth  with  my  own  hand.  My  former  joint 
Will  with  my  brother  John's  was  virtually  effectuated,  in  ad- 
vance a  good  while  ago,  and  by  that  joint  Will  my  son  Joseph, 
and  his  son.  have  been  well  provided  for  ;  and  my  next  grand- 
son. Joseph  Alston,  Jr.,  has  been  amply  provided  for  also  by 
the  joint  Will  of  his  other  grand-father,  John  Ashe  Alston: 
Wherefore,  having  to  provide  for  many  others,  for  my  de- 
ceased son  John's  large  family,  and  my  daughter  Mary's 
family,  and  my  other  two  daughters,  I  now  think  proper  to 
reserve  for  these  others  my  remaining  Estate,  to  the  exclu- 
sion of  my  son  Joseph,  and  his  son,  and  my  grand-son,  Joseph 
Alston,  Jr.;  and  I  hereby  order  this  and  strictly  will  it,  hoping 


thai  neither  of  the  latter  can  think  it  hard  that  I  do  not  give 
to  them  what  la  required  more  by  the  many  others  :  but  I 
except  from  this  arrangement  the  lands  called  "Turkey  Ilills 
Sea  Shore,"  and  "Boone's  Savannah."  and  give  these  lands  to 
my  grand-son,  Joseph  Alston.  Jr.,  as  sold  me  publicly  by  the 
Commissioner  in  Equity,  Solomon  Cohen,  Esq. 

I  bequeath  to  my  daughters  Charlotte  and  Anna,  jointly, 
the  sum  of  twenty  thousand  ($20,000)  dollars,  or  satisfactory 
stocks  of  that  amount,  and  wish  my  Executors  to  place  the 
same  at  the  disposal  of  my  said  daughters  as  soon  as  they,  the 
Executors,  can  raise  the  means  with  the  Estate's  paper  on 
suitable  credit — such  credit  as  might  possibly  be  essential, 
in  view  of  the  Wills,  other  intents  and  bearings.  And  in 
addition  to  my  past  gift  to  them  of  the  House  in  Charleston, 
with  its  pertainments,  I  now  give  those  daughters,  Charlotte 
and  Anna,  and  their  heirs,  my  House  in  Greenville  District, 
with  the  contents,  and  two-thirds  of  my  Greenville  lands,  to 
be  divided  by  a  line  drawn  in  such  direction  as  the  daughters 
may  choose.  I  also  give  the  said  daughters  that  piece  of 
land  hereinafter  described  on  the  seaward  side  of  Clifton 
Tract,  with  a  House  now  on  it  and  a  Barn,  a  spot  to  their 
fancy,  for  a  Lodge,  and  for  horticultural  purposes,  the  place 
to  be  subject  to  their  own  unrestricted  testamentary  disposi- 
tion, or  in  failure  thereof  to  be  then  taken  by  the  heirs  or  heir 
of  Clifton.  And  I  allow  those  daughters  the  use  of  the  North 
House  at  the  Beach,  belonging  to  Rose  Hill's  tract,  for  and 
during  their  lives,  with  such  grounds  on  the  Island  as  they 
may  desire,  and  with  whatever  of  the  plantation  growth  they 
in  their  discretion  may  require  for  the  table,  in  either  House, 
sea  side  or  river  side,  and  for  their  servants  and  horses  ;  no 
turn  of  affairs  ever  to  effect  the  right  of  my  daughters  to  use 
the  Beach  House,  and  the  Estates'  workmen  to  keep  it  in 
repairs,  and  also  the  appurtenances.  And  I  give  absolutely 
to  the  said  daughters,  Charlotte  and  Anna,  these  slaves  : 
Alfred  and  Rachel,  Lanceford,  Cibby  Campbell,  Peggy  and 
Evey,  Peter  and  Nelly,  in  charge  of  the  House  in  Town ; 
Neptune  and  Sarah,  in  charge  of  the  Greenville  House,  to- 
gether   with    my  carriage,  and  the   horses  in  stable  ;  and  I 


would    that  no  inventory  be  made  of  the   pertainmenta  to 

either  House.     This  last  Will  cancels  all  former  Wills,  except 
my  joint  Will  with  my  brother  John's  Will. 

W.  A.  ALSTON. 
Signed,  published  and  declared,  as  and  for  his  last  Will, 
by  the  Testator,  in  our  presence,  who,  in  his  presence,  and 
the  presence  of  one  another,  at  his  request,  have  hereto  sub- 
scribed our  names,  this  thirty-first  day  of  August,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  sixty. 

ALEX.  GLENN  IE. 
ANDREW  HASELL, 
CHARLES  ALSTON,  Sr. 

And  that  after  the  said  Will  was  executed,  the  following- 
codicil  was  added  : 

Whereas.  I,  William  A.  Alston,  having  made  and  duly  exe- 
cuted my  last  Will  and  Testament,  in  writing,  bearing-  date  the 
thirty-first  day  of  August,  in  the  year  of  our  Lord  one  thousand 
eight  hundeed  and  sixty,  now  I  do  hereby  declare  this  present 
writing  to  be  as  a  codicil  to  my  said  Will,  and  direct  the  same  to 
be  annexed  thereto,  and  taken  as  a  part  thereof.  I  do  hereby 
ordain,  constitute  and  appoint  my  friends,  Alexander  Robert- 
son and  John  P.  Blacklock,  and  my  nephew  William  Alston 
Pringle,  Executors  of  my  last  Will  and  Testament. 

W.  A.  ALSTON,  Sen.  [l.s.] 
Signed,  sealed  and  declared,  by  the  said  William  A.  Alston, 
as  and  for  a  codicil  to  be  added  to.  and  to  be  considered  as  a 
part  of  his  last  Will  and  Testament,  in  the  presence  of  us, 
who  have  subscribed  our  names  in  his  presence,  this  tenth  day 
of  Septsmber,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  sixty. 

ALEX.  GLENNIE, 
ANDREW  HASELL, 
CHARLES  ALSTON,  Sr. 

That  the  said  William  Algernon  Alston  afterwards,  on  the 
16th  day  of  September  last,  departed  this  life,  leaving  his 


Raid  Will  and  Codicil  in  full  force,  and  the  same  was  proved 
by  your  Orators,  who  undertook  the  burthen  of  the  execution 
thereof.  That  Joseph  Alston,  the  Testatofr'a  son  before  men- 
tioned, died  ou  the  litith  day  of  September  last,  without  wile 
or  widow,  intestate,  leaving  oik- son.  William  Algernon  Alston 
the  younger,  him  surviving  :  that  the  said  William  Algernon 
Alston  the  younger,  in  his  grand-father's  lite,  attained  the 
age  of  twcntv-nne  years,  whereby  tin-  Estates  settled  by  the 
Testator's  part  of  the  instrument  of  1816,  vested  in  him,  in 
lee,  and  all  subsequent  limitations  and  remainders  were  de- 
feated ;  and  your  Orators  are  advised,  that  by  virtue  ol  his 
confirmation  and  release  aforesaid,  his  estate  in  the  "Point" 
plantation  and  Greenville  lands,  on  the  death  of  his  father, 
vested  in  his  grand-father.  That  the  Testator,  William  Alger- 
non Alston,  left  issue  besides  his  son  Joseph  Alston  aforesaid, 
and  his  grand-sons,  William  Algernon  Alston,  Jr.  and  Joseph 
Alston,  Jr.;  his  daughters,  Alary,  wife  of  Seaman  Deas  of 
North  Santee,  physician,  Charlotte  Alston  and  Anna  Alston; 
and  Fanny  Alston,  the  widow,  and  Theodosius,  John  Ashe, 
Washington,  Helen,  Algernon,  Fanny,  Rowland,  ami  Thomas, 
the  sons  and  daughters  of  his  deceased  son  John  Ashe  Alston; 
all  of  whom  the  said  sons  and  daughters  are  infants  under  the 
age  of  twenty-one  years.  That  the  Testator  was  possessed 
of  a  great  Estate,  and  indebted  in  many  large  sums  of  money, 
which  may  necessitate  or  render  expedient  the  sale  of  apait 
or  the  whole  of  his  Estate  not  specially  reserved.  That  your 
Orators  are  willing  to  execute  the  trusts  of  the  said  Will,  but 
are  met  by  many  difficulties,  and  cannot  fulfil  their  trust 
without  incurring  the  risk  of  a  devastavit,  unless  protected 
by  the  direction  of  this  Honorable  Court.  That  your  Orators 
are  advised,  that  their  views  respecting  the  "Point"  plantation 
and  Greenville  lands  are  controverted.  That  there  is  uncer- 
tainty respecting  the  residue  of  the  Testator's  Estate,  both 
as  to  the  Estates  which  constitute  the  residue  and  as  to  the 
persons  entitled  to  it. 

That  the  Will  of  the  Testator  has  not  in  express  terms  de- 
vised the  residue  of  his  Estate  to  any  person,  and  that  it 
cannot  be  ascertained  of  what  the  residue  consists  until  the 


construct! ..n  of  the  Will  is  settled.  That  the  construction  of 
the  Will  involves  the  rights  of  the  widow  .'.ml  children  of  his 
son,  John  Ashe  Alston,  deceased.  That  the  Will  has  not 
shown,  by  express  declaration  or  by  necessary  implication, 
what  is  meant  by  the  la:  ily  of  the  said  John  Ashe  Alston,  or 
the  family  of  his  daughter,  Mary  Peas,  nor  how  the  members 
of  said  families  should  take,  nor  what  it  is  that  they  are  to 
take,  under  the  words  of  the  Will  in  which  they  are  mentioned. 
That  the  Testator  has  not  expressly  declared  his  intention, 
whether  his  daughters,  Charlotte  Alston  and  Anna  Alston 
should  take  the  property  bequeathed  as  their  share  or  portion, 
or  as  an  accumulative  gift.  That  all  the  children  and  grand- 
children of  Testator,  and  their  families,  are  interested  in  these 
questions  :  and  that  your  Orators  are  unable  to  act  in  the 
premises  without  incurring  the  penalties  of  a  breach  of  trust, 
a  risk  against  which,  as  Trustees,  they  have  a  right  to  be 
protected  by  this  Honorable  Court. 

In  tender  consideration  whereof,  and  inasmuch  as  they 
are  remediless  at  law,  and  can  receive  relief  only  in  this  Hon- 
orable Court — To  the  end,  therefore,  that  the  said  William 
Algernon  Alston,  Joseph  Alston,  Jr.,  Charlotte  Alston.  Anna 
Alston,  Seaman  Deas,  and  Mary  his  wife,  Fanny  Alston,  widow, 
andTheodosius  Alston,  John  Ashe  Alston,  Washington  Alston, 
Helen  Alston,  Algernon  Alston,  Fanny  Alston,  Rowland  Als- 
ton, and  Thomas  Alston,  children  of  John  Ashe  Alston,  de 
ceased,  may  full,  true  and  perfect  answer  make  to  the  premises, 
that  the  trusts  of  the  Testator's  Will  may  be  declared,  as  well 
as  the  rights  of  the  parties  not  only  under  the  foregoing  Will, 
but  also  under  the  instrument  of  1816,  as  far  as  your  Orators' 
duty  in  the  premises  is  concerned;  and  your  Orators  may 
receive  such  other  and  further  relief  as  the  nature  of  this 
case  may  require,  and  to  your  Honors  may  seem  meet, 

May  it  please  your  Honors,  to  grant  unto  your  Orators 
a  writ  of  Subpoena  ad  Respondendum,  to  be  directed  to  the 
said  William  Algernon  Alston,  Joseph  Alston,  Jr.,  Charlotte 
Alston,  Anna  Alston,  Seaman  Deas,  and  Mary  his  wife,  Fanny 
Alston,  widow,  and  Theodosius  Alston,  John  Ashe  Alston, 
Washington  Alston,  Helen  Alston,  Algernon  Alston,  Fanny 


Alston,  Rowland  Alston,  and  Thomas  Alston,  commanding 
tliem  al  h  certain  day,  and  under  a  certain  pain  therein  to  be 
inserted,  personally  to  be  and  appear  in  this  Honorable  Court, 
then  and  there  to  answer  to  the   premises,  and   further  to 

stand  to  ;md  abide  by  such  order,  direction  and  decree  in  the 
premises,  as  to  your  Honors  may  seem  agreeable  to  Equity 
and  good  conscience. 

And  your  Orators  will  ever  pray.  <fcc. 

PETIGRU  <fc  KING, 

Compl'ts  Sol's. 


